Bill C-77 (Historical)

An Act to amend the National Defence Act and to make related and consequential amendments to other Acts

This enactment amends provisions of the National Defence Act governing the military justice system.
It adds a new Division, entitled “Declaration of Victims Rights”, to the Code of Service Discipline, that specifies that victims of service offences have a right to information, protection, participation and restitution in respect of service offences. It adds or amends several definitions, including “victim” and “military justice system participant”, and specifies who may act on a victim’s behalf for the purposes of that Division.
It amends Part III of that Act to, among other things,
(a) specify the purpose of the Code of Service Discipline and the fundamental purpose of imposing sanctions at summary hearings;
(b) protect the privacy and security of victims and witnesses in proceedings involving certain sexual offences;
(c) specify factors that a military judge is to take into consideration when determining whether to make an exclusion order;
(d) make testimonial aids more accessible to vulnerable witnesses;
(e) allow witnesses to testify using a pseudonym in appropriate cases;
(f) on application, make publication bans for victims under the age of 18 mandatory;
(g) in certain circumstances, require a military judge to inquire of the prosecutor if reasonable steps have been taken to inform the victims of any plea agreement entered into by the accused and the prosecutor;
(h) provide that the acknowledgment of the harm done to the victims and to the community is a sentencing objective;
(i) provide for different ways of presenting victim impact statements;
(j) allow for military impact statements and community impact statements to be considered for all service offences;
(k) provide, as a principle of sentencing, that particular attention should be given to the circumstances of Aboriginal offenders;
(l) provide for the creation, in regulations, of service infractions that can be dealt with by summary hearing;
(m) provide for a scale of sanctions in respect of service infractions and for the principles applicable to those sanctions;
(n) provide for a six-month limitation period in respect of summary hearings; and
(o) provide superior commanders, commanding officers and delegated officers with jurisdiction to conduct a summary hearing in respect of a person charged with having committed a service infraction if the person is at least one rank below the officer conducting the summary hearing.
Finally, the enactment makes related and consequential amendments to certain Acts. Most notably, it amends the Criminal Code to include military justice system participants in the class of persons against whom offences relating to intimidation of a justice system participant can be committed.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Again, the majority of Bill C-77 reflects what we did in Bill C-71. Protecting victims' rights is something we support. I agree with Mr. Garrison. We had a chance to help with the destigmatization of mental health, especially around suicide and self-harm, by taking that out of the National Defence Act.

I do hope that the members from JAG here are listening to the concerns we've raised about the criminal records aspect and how these things can come back to bite our troops as they become veterans and want to participate in their communities as volunteers, as well as seek future employment. I hope that as you draft the new QR&O, that is well taken into consideration.

I will be supporting Mr. Garrison as he brings forward his amendments at report stage. Hopefully, we'll have a better hearing with the Speaker than we received at committee.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you, Mr. Chair.

I believe that Bill C-77 does important things in reforming the military justice system, especially as it improves victims' rights within that system, despite my disappointment that a couple of things, I think, were incorrectly ruled out of order. I will take those up at report stage in the House. In particular, on the urgent matter of removing all obstacles for those who may be considering self-harm to get care, I believe the amendment I moved is germane to that. I believe it's germane to the larger reforms of the military justice system that we've undertaken.

I'm also disappointed that Mr. Bezan's amendment, to try to make absolutely sure that people do not get criminal records as a result of infractions, was ruled out of order. I understand the technical arguments that we've heard, but I think it should have been considered by the committee and not ruled out of order.

Despite my disappointment on those two rulings, I still think this bill is an important reform of the military justice system. I will be voting in favour of the bill.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

The amendment reads:

That Bill C-77, in Clause 65, be amended by replacing, in the French version, line 16 on page 81 with the following:

"(15) Si l'article 59 de la première loi entre"

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

The amendment reads:

That Bill C-77, in Clause 63, be amended by replacing, in the English version, line 14 on page 70 with the following:

“(1.2) The court martial or the Court Martial Ap-”

What it essentially does is remove the excess word “tribunal” from the English text. That's proposed subsection 215(1.2) of the National Defence Act. This section refers to courts martial, and therefore the word “tribunal” is superfluous.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

I'll move this, Mr. Chair.

It's another one of these meaty amendments. It says:

That Bill C-77, in clause 61, be amended by replacing, in the French version, line 1 on page 57 with the following:

"incarcéré dans un pénitencier ou une prison civile, au sens"

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

I'll just say that I think this is an overstep. As Mr. Garrison said when you ruled out his amendment, NDP-1, these opportunities only come along once in a while.

To address your point on Bill C-71 and Bill C-77, this is why we have committee meetings. This is why we have expert witnesses. This is what we've heard from expert witnesses. It comes back again to Mr. Perron. He is the one who suggested that we go this route. We need to make sure these criminal records do not haunt the future of our veterans.

When we start talking about transition and wanting to support our military members as they move back to civilian life, really minor service infractions should not be on their criminal records. This is a way to address it. I think it is incredibly unfortunate that we aren't taking the opportunity to hear from expert witnesses and incorporate those changes into the bill, because, as was pointed out by Mr. Garrison, this won't happen again for the next....

We need to make sure that we address those issues. The summary of the bill, which is in the front of Bill C-77 is very clear that we are dealing with minor infractions. I can't see how you can rule this out of order. For that I challenge the chair.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

As you know, this amendment is very simple. If you look at the summary of Bill C-77 at the beginning of the bill, it notes the amendments:

(l) provide for the creation, in regulations, of service infractions that can be dealt with by summary hearing;

(m) provide for a scale of sanctions in respect of service infractions and for the principles applicable to those sanctions;

(n) provide for a six-month limitation period in respect of summary hearings; and

(o) provide superior commanders, commanding officers and delegated officers with jurisdiction to conduct a summary hearing in respect of a person charged with having committed a service infraction if the person is at least one rank below the officer conducting the summary hearing.

Since we're dealing with service infractions and the issues surrounding summary hearings, the amendment is very simple. This is about making sure that criminal records that occur for members of the military do not become part of their civilian criminal records going forward.

Specifically, we are dealing with a few minor offences here that we want to make sure are dealt with. Section 85 deals with insubordinate behaviour; section 86 is about quarrels and disturbances; section 90 is about absence without leave; section 97 deals with drunkenness; and section 129 is about conduct prejudicial to good order and discipline.

All of those infractions would not form a criminal record for civilians, but they do for military members. When they leave the forces, that will haunt them as they apply for jobs and move on with their lives. It's not just for their work lives, either. If one of them wants to volunteer as a hockey coach and someone does a criminal records check, these things will pop up.

What we're trying to do is make sure that these minor offences do not become anything more than just an issue of disciplinary action within the military and do not travel with members down the road as they transition into veterans.

[The Chair, Liberal, Stephen Fuhr]

Welcome back, everybody, to the defence committee this morning to continue our discussion about Bill C-77.

I'd like to welcome back Colonel Strickey, Lieutenant-Colonel Lortie and Major Lacharité. Thank you for coming.

I think we left off with CPC-7. MP Bezan was about to speak to his proposed new clause 42.1.

Mr. Bezan, go ahead.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Mr. Chair, I move that Bill C-77, in clause 37, be amended by replacing line 3 on page 48 with the following:

“37 Section 230 of the Act is amended by adding the following after paragraph (a): (a.01) if the sanction imposed on a person found to have committed a service infraction is detention, reduction in rank or a fine exceeding 25% of basic pay and that finding has been reviewed in accordance with section 163.6, the legality of that finding and the severity of the sanction; (2) Section 230 of the Act is amended by striking”

We've been discussing quite a bit here that certain punishments can be penal in nature but there's no real avenue for appeal to a higher authority. This amendment would allow that appeal to a judge of the Court Martial Appeal Court in the case of a sentence arising from a summary hearing that is penal in nature.

The Quebec bar association had a similar concern. They said that even though there are minor sanctions, which are not defined in the bill, as we discussed, but will come out in future regulations, they wondered whether these minor sanctions will simply continue the minor punishments under the current system, and if so, this could pose a problem. They said that in addition, these minor punishments could include confinement to ship or barracks—we've already talked about that—and that confinement could be for up to 21 days. They said that in certain cases, the deprivation of freedom is very restrictive, similar to a suspended prison sentence under section 742.1 of the Criminal Code.

Essentially what we're saying is that these appeals would only be available to the Court Martial Appeal Court where the service member has received a penal sentence. We're talking about detention. We're talking about huge fines, 25% of their basic pay. We're talking about reduction in rank. Therefore, some of these are penal in nature. If they're penal in nature, they should have the right of appeal to the Court Martial Appeal Court. This provides that opportunity.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

This will be a fun one and a bit of a challenge:

I move that Bill C-77, in clause 29, be amended by (a) replacing in the French version, line 23 on page 44 with the following:

fraction d'ordre militaire dont il est accusé, s'avoue cou-

(b) replacing, in the French version, line 28 on page 44 with the following:

dont il est accusé, déclarer l'accusé coupable de l'infrac-

(c) replacing, in the French version, line 32 on page 44 with the following:

(8) Dans le cas où l'accusé est accusé d'une infraction

(d) replacing, in the French version, line 37 on page 44 with the following:

il est accusé ou, tout en niant sa culpabilité à l'égard de

(e) replacing, in the French version, line 4 on page 45 with the following:

(9) Dans le cas où l'accusé est accusé d'une infraction

Sorry about that to any of the French speakers in the room, but it will look fine in the blues.

(Amendment agreed to)

(Clause 29 as amended agreed to on division)

(Clauses 30 to 36 inclusive agreed to on division)

(On clause 37)

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Mr. Chair, this is another housekeeping amendment.

I move that Bill C-77, in clause 27, be amended by replacing, in the English version, line 4 on page 28 with the following:

the record is in the prosecutor' s possession or control, but, in doing

(Amendment agreed to on division)

(Clause 27 as amended agreed to on division)

(Clause 28 agreed to on division)

(On clause 29)

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

I have a supplementary question for Colonel Strickey.

I don't imagine those service offences that show up as a criminal record or record of conduct would become Criminal Code offences. What is the attached reasons requirement for those offences as it currently is framed, or as it will be framed under Bill C-77, with respect to potential avenues of appeal? Presumably it's more elaborate than what would be the case for disciplinary offences of a minor nature.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Mr. Chair, I move that Bill C-77, in clause 25, be amended by adding after line 29 on page 22 the following:

163.21 (1) A summary hearing may not be conducted unless the superior commander, commanding officer or delegated officer has taken the necessary measures to ensure that a recording or a transcript of the summary hearing is made and that any document or information relating to the hearing and ail exhibits filed with it are preserved. (2) The superior commander, commanding officer or delegated officer shall give reasons for his or her finding."

What we have here is even though these summary hearings are supposed to be administrative in nature and hopefully not penal, we do know that currently certain service infractions show up as criminal records down the road for our service members.

If we're not going to provide proceedings of those hearings or the rulings, how does that individual, when they release from the Canadian Armed Forces, who then goes out and applies for a job.... All of us get criminal record background checks now. That record is going to show that the individual had a criminal record while serving in the Canadian Armed Forces. In civilian life, offences like drunkenness would most likely not be a Criminal Code violation and insubordination would not be a Criminal Code violation, but they would show up on the criminal record.

To expunge that criminal record, they would need to have evidence of what the rulings were and if we're not taking any proceedings at the summary hearings or providing written findings by the COs they would have a big problem down the road as they transition to civilian life.

Without the opportunity to appeal—maybe it doesn't matter—but if we provide an appeal process, those findings are required to provide information to the higher delegated officer or a court martial.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Well, as we continue to talk about this, the one thing we don't want to have is a situation where some of these things become subject to charter challenges. I'm looking through the definitions in Bill C-77. I don't even see a definition in here—maybe you can—for what's that term again...the balance of...?

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

I'll move the first one, amendment CPC-3, that Bill C-77, in clause 25, be amended by replacing lines 13 to 16 on page 21 with the following:

(a) the person charged is an officer who is at least one rank below the rank of the superior commander, commanding officer or delegated officer, or is a non-commissioned member;

This is a direct link to Lieutenant-Colonel (Retired) Perron's brief, which talks about jurisdiction on page 13. Right now, the way it reads, it talks about “commanding officer or delegated officer”. It does not mention non-commissioned members, because non-commissioned members are not one rank below a superior commander, commanding officer or delegated officer. Of course, they are below the lowest-ranking officer, but sometimes they are present and have to act in the absence of an officer. Non-commissioned members and non-commissioned officers should be mentioned in the legislation in the event that they have to carry out a summary hearing.